7/2/2015

Textualists may have suffered a major loss in the Supreme Court last week, but they won a small victory in an Ohio appellate court this week — even though the court (as courts often do) misdescribed what it was doing. It is the intent of this post to explain the issue, describe the court’s resolution, and show how the proper analysis rejects any examination of “legislative intent” in favor of a Scalia/Patterico form of textualism — one that says “we don’t care what the legislature meant; we just care what it said.”

The Washington Postreports that Andrea Cammelleri was cited for parking her truck on a street for more than 24 hours. The relevant ordinance said it was illegal to park “any motor vehicle camper, trailer, farm implement and/or non-motorized vehicle” on a street for more than 24 hours.

Cammelleri argued that her truck is not a “motor vehicle camper” — nor any other sort of vehicle described in the ordinance. The trial court found that the ordinance meant to say “motor vehicle, camper, trailer,” etc. They just forgot the comma, the judge said. But you can’t look at what they actually wrote, the judge said — you have to go with what they intended.

Cammelleri appealed, and the court of appeal ruled in her favor. The court explained “we must read words and phrases in context and construe them in accordance with rules of grammar and common usage.” The court further observed: “According to ordinary grammar rules, items in a series are normally separated by commas.” Since “motor vehicle” and “camper” were not separated by a comma, under ordinary grammar rules, a reasonable citizen reading the law would understand “motor vehicle camper” to be one type of motor vehicle, not including a truck. Therefore, Cammalleri’s truck was not covered by the ordinance, and she did nothing wrong.

So far so good. But where the court went off the rails is in suggesting, as courts often do, that theirs was a search for “legislative intent”: “The paramount concern is determining legislative intent in enacting the statute.”

No, no, a thousand times, NO!

If the rule of law means anything, a statute must be written in such a way that a citizen can understand what his obligations are, according to the written statute.

If I were a judge in this case, and the prosecuting attorney offered to present evidence of the legislators’ intent, I would rule that evidence inadmissible, as being wholly irrelevant to the proper interpretation of the statute.

Let’s say that they offered to have each member of the local legislature come to court and swear on a stack of bibles that they meant for all motor vehicles to be covered. Denied; irrelevant!

Let’s say that they had videos of floor speeches, where every legislator got up and proclaimed how wonderful the ordinance would be, because it would prevent every motor vehicle in the town from parking in the same place for more than 24 hours. Denied; irrelevant!

“We intended for all motor vehicles to be covered!” Lovely; don’t care. “Our purpose was to unclog the streets!” Wonderful; still don’t care!

Why would I refuse to hear such testimony? Because, as a judge, I don’t care what the legislature meant. I don’t care what the legislature intended. I don’t care about the legislators’ purpose. I just care what the legislature wrote.

In short: what the legislators meant doesn’t matter to a judge’s proper interpretation of the text. The legislators’ intentions are irrelevant when it comes to determining the proper way to interpret the text for purposes of enforcing it in court.

The court’s use of the phrase “common usage” here is key. The proper way to examine the language is to discern how a reasonable audience would read the text. That is the only analysis consistent with the rule of law. That is because the government, in arrogating to itself the power to declare obligations on the part of the citizenry, has a duty to make those obligations plain. If they fail to do so, the proper interpretation of their words has zero (zip! zilch! nada!) to do with their unexpressed intent, and everything to do with how a reasonable audience (the citizenry subject to the law) would interpret those words.

Note here that the court does not get to employ the cute, incoherent, meaningless dodge of saying “we are sending this back to the legislature to fix.” They can declare that the legislature has the option of fixing the statute in the future, of course — and indeed the court says in this very case: “If the village desires a different reading, it should amend the ordinance and insert a comma between the phrase ‘motor vehicle’ and the word ‘camper.’”

But — and this is hugely important — the court cannot use that as a way to dodge its duty to interpret the language in front of it. This court had to decide: was Cammelleri guilty or not? Were they going to apply what was written, or apply some secret, poorly expressed intent/purpose to override the plain meaning of the ordinance?

Are we going to go with the text, or with “intent”? The court had to confront that issue and make a decision.

The court did right. It applied plain meaning. It refused to enforce some secret, unexpressed intent or purpose, and went with the text.

In short, even if the judges expressed their ruling with reference to “intent,” this explanation was wrong. One thousand unanimous legislators expressing their intent or purpose could not override the plain language of the statute. Even if the judge believed them, their intent would be irrelevant.

And the court’s result favored textualism over intentionalism or purposivism.

And properly so. For textualism is the only legal interpretive method consistent with the rule of law.

As I am seriously pressed for time today, I will just throw this up here.

George Takei grossly misread Supreme Court Justice Clarence Thomas’s dissent to the ruling in Obergefell. And based on his own utterly ridiculous (mis)understanding of it, he threw an ugly racist hissy fit.

From Thomas:

Human dignity has long been understood in this country to be innate. When the Framers proclaimed in the Declaration of Independence that “all men are created equal” and “endowed by their Creator with certain unalienable Rights,” they referred to a vision of mankind in which all humans are created in the image of God and therefore of inherent worth. That vision is the foundation upon which this Nation was built.

The corollary of that principle is that human dignity cannot be taken away by the government. Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved. Those held in internment camps did not lose their dignity because the government confined them. And those denied governmental benefits certainly do not lose their dignity because the government denies them those benefits. The government cannot bestow dignity, and it cannot take it away.

Takei, in full ignorant meltdown mode:

He is a clown in black face sitting on the Supreme Court. He gets me that angry. He doesn’t belong there. And for him to say, slaves have dignity. I mean, doesn’t he know that slaves were in chains? That they were whipped on the back. If he saw the movie 12 Years a Slave, you know, they were raped. And he says they had dignity as slaves or – My parents lost everything that they worked for, in the middle of their lives, in their 30s. His business, my father’s business, our home, our freedom and we’re supposed to call that dignified? Marched out of our homes at gun point. I mean, this man does not belong on the Supreme Court. He is an embarrassment. He is a disgrace to America.

Facepalm.

Anyway, the whole thing is just more muddle-headed nonsense from the usual corners. For a patient and painstaking analysis, check out Sean Davis.

SOLID REPORT: U.S. employers added 223,000 jobs in June, and the unemployment rate fell to a seven-year low of 5.3 percent. The rate fell mostly because many people out of work gave up on job hunting and were no longer counted as unemployed.

Ed Morrissey notes: “The new workforce participation rate is the lowest in the US since 1977.”

Remember: the availability of disability payments to healthy people has exploded under Obama. I am mystified that government policies incentivizing people to leave the workforce has the effect of causing people to leave the workforce.

SEARCH AMAZON USING THIS SEARCH BOX:
Purchases made through this search function benefit this site, at no extra cost to you.
We are a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide a means for us to earn fees by linking to Amazon.com and affiliated sites.